Com. v. Wamsher

• Decision Date: 26 June 1990
• Citation: 395 Pa.Super. 384,577 A.2d 595
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Richard Edgar WAMSHER, Jr., Appellee.
• Court: Pennsylvania Superior Court

Page 595

577 A.2d 595

395 Pa.Super. 384

COMMONWEALTH of Pennsylvania, Appellant, v. Richard Edgar WAMSHER, Jr., Appellee.

Superior Court of Pennsylvania.

Submitted Nov. 27, 1989.

Filed June 26, 1990.

Charles M. Guthrie, Jr., Asst. Dist. Atty., Reading, for the Com., appellant.

James M. Bucci, Reading, for appellee.

Before ROWLEY, KELLY and MONTGOMERY, JJ.

KELLY, Judge:

The Commonwealth appeals from an order dismissing burglary charges against appellee, Richard Edgar Wamsher, based upon the trial court's determination that the Commonwealth had failed to exercise "due diligence" in bringing appellee to trial within 120 days of the withdrawal of appellee's guilty plea, as required under the former version of Pa.R.Crim.P. 1100. We find that the run date under the new version of Rule 1100 was applicable in this case, and that it had not yet expired. We find alternatively that the Commonwealth had acted with "due diligence." Consequently, we reverse.

Facts and Procedural History

Appellee was charged by complaint with burglary and related offenses on April 26, 1987. Appellee consented by stipulation and an express waiver of Rule 1100 rights to an extension of the original Rule 1100 date to February 12, 1988. On December 15, 1987, appellee offered a guilty plea which was conditionally accepted. At sentencing on December 18, 1987, upon review of the file and following objection to the plea bargain by the victim of the offense, the trial court permitted appellee to withdraw his plea.

On April 15, 1988, the Commonwealth filed a petition for an extension of the Rule 1100 run date, asserting the unavailability of the defendant, the unavailability of the defense counsel, and judicial delay. The petition was denied following a hearing on April 27, 1988. Charges pending against appellee were dismissed with prejudice, and this timely appeal followed.

On appeal, the Commonwealth contends that the trial court erred in failing to apply our Supreme Court's amendments to Rule 1100 in this case, as the run date under the former version of Rule 1100 had not expired when the amendments became effective. The Commonwealth also contends that it acted with due diligence in bringing this case to trial.

Appellee responds that when his case was called for trial on April 24, 1988, 130 days had passed since his plea had been withdrawn, and 366 days had past since the original complaint was filed. Appellee argues that the 120 day period under the former rule controls this case; or alternatively, if the new rule applies, its 365 day period runs from the date of the filing of the complaint, and not the date of the withdrawal of appellee's guilty plea. Appellee concludes that in either case discharge was required.

The trial court, in its Pa.R.A.P. 1925(a) opinion, reasoned that the former version of Rule 1100 controlled this case, notwithstanding the amendment of the Rule 1100 by our Supreme Court on December 31, 1987. The trial court further explained that review of its own docket (which the court and not the prosecutor controlled) supported a conclusion that the prosecution had not acted with due diligence in bringing appellee to trial. The trial court did not elaborate as to how its docket revealed the Commonwealth's lack of due diligence, nor did the trial court indicate that the Commonwealth had failed to appear ready to try this case on any date for trial scheduled by the trial court.

Application of Amended Rule 1100

Appellee was arrested and charged on April 25, 1987. He was thereafter released on bail and remained at liberty on bail at all relevant times.

On November 24, 1987, the trial court granted an extension of the Rule 1100 run date to February 22, 1988, based upon the stipulation of the parties and an express written waiver of Rule 1100 rights signed by appellee. On December 15, 1987, appellee entered a guilty plea. Appellee's plea, though conditional, nonetheless satisfied the Rule 1100 requirement, as it occurred before the extended run date of February 22, 1988, and placed appellee on trial within the meaning of the constitutional speedy trial requirement and Rule 1100. Commonwealth v. Whittall, 304 Pa.Super. 258, 262, 450 A.2d 669, 671-72 (1982); Commonwealth v. Lewis, 295 Pa.Super. 61, 67, 440 A.2d 1223, 1226 (1982) (en banc).

On December 18, 1987, however, the trial court permitted appellee to withdraw his plea. Under the version of Rule 1100 then in effect, the withdraw of the plea was treated as the grant of a new trial, and triggered a new 120 day period within which to again bring appellee to trial. See Commonwealth v. Hollenbach, 375 Pa.Super. 281, 290 n. 3, 544 A.2d 471, 476 n. 3 (1988); Commonwealth v. Jensch, 322 Pa.Super. 304, 310, 469 A.2d 632, 636 (1983); Commonwealth v. Whittall, supra, 450 A.2d at 671-72; Pa.R.Crim.P. 1100(e)(1) & note (effective December 9, 1974 through December 31, 1987) (note--"Withdrawal, rejection of, or a successful challenge to a guilty plea should be considered the granting of a new trial for purposes of this rule."). The new run date under the former version of Rule 1100 thus became April 16, 1988.

On December 31, 1987, our Supreme Court amended Rule 1100(e)(1) effective immediately, and renumbered the amended provision Rule 1100(d)(1). It is now well-settled that the amendments to Rule 1100, including those made to former Rule 1100(e)(1), promulgated and rendered effective immediately on December 31, 1987, operate to extend Rule 1100 run dates in accordance with the provisions of the new version of Rule 1100, so long as the applicable run date under the former version of Rule 1100 had not expired as of December 31, 1987. See Commonwealth v. Monahan, 392 Pa.Super. 55, ----, 572 A.2d 230, 231 (1990); Commonwealth v. Corbin, 390 Pa.Super. 243, 246, 568 A.2d 635, 636 n. 4 (1990); Commonwealth v. Palmer, 384 Pa.Super. 379, 381-84, 558 A.2d 882, 883-84 (1989). Because the run date in this case under the former version of Rule 1100 was April 16, 1988 (a date after December 31, 1987), the new version of Rule 1100, rather than the former version of Rule 1100 applied. Hence, the trial court erred in calculating the Rule 1100 run date solely with reference to the former rule.

Appellee argues, however, that even under the new version of Rule 1100 the run date applicable in this case had expired. Appellee bases this argument on a rigidly literal, and only superficially plausible, construction of the new Pa.R.Crim.P. 1100(d)(1) which provides:

(d)(1) When a trial court has granted a new trial and no appeal has been perfected, the new trial shall commence within one hundred and twenty (120) days after the date of the order granting a new trial, unless the defendant has been released on bail, in which instance, trial shall commence in accordance with the provision of subsection (a)(3).

(Emphasis added). Because appellee had been released upon bail, we must refer to the provisions of subsection (a)(3):

(a) (3) Trial in a court case in which a written complaint is filed against the defendant, where the defendant is at liberty on bail, shall commence no later than three hundred sixty-five (365) days from the date on which the complaint is filed.

(Emphasis added). Seizing upon the emphasized language in Pa.R.C.P. 1100(a)(3), appellee argues that proceedings after a new trial is granted must be held within 365 days of the filing of the original complaint, rather than 365 days from the granting of a new trial. We cannot agree.

As noted above, the original plea placed appellee "on trial" and fulfilled and extinguished the original speedy trial requirement which arose when the complaint was initially filed against appellee. See Commonwealth v. Whittall, supra; Commonwealth v. Lewis, supra. When appellee was permitted to withdraw his plea this effectively granted a new trial and triggered an entirely new speedy trial run date. At issue here is the manner in which our Supreme Court intended new Rule 1100(a)(3) to be incorporated by reference into new Rule 1100(d)(1), to govern the determination of the new Rule 1100 run date.

Regarding incorporation by reference, it has been cogently observed that:

[The] greatest advantage gained by incorporating terms by reference is that the new bill may be shortened with two practical benefits, reduction in volume of the statute books, and application of established precepts of proven worth to a new situation with a minimum of legislative tinkering. Balanced against these benefits, mere inconvenience of looking "beyond the four corners" of the new bill and act should mean little, and as a screen for fraud the device can as a practical matter largely be discounted. However, since any incorporation of terms by reference inevitably renders them indeterminate as to the referring act, great care should be taken to insure that they are readily and surely determinable. Hence, very serious consideration should be given to the degree to which a proposed referential adoption will render the terms of the new measure difficult to discover, unworkable or unintelligible.

A [cautious] draftsman will first of all if the proposed reference is to adopt an act or portion of an act examine the whole of that act, its textual environment, construction, history and administrative application, to make sure that the adoption will neither heap up a series of statutes, be unsuitable, nor achieve unintended results. Having satisfied himself that serious dangers of that sort are avoidable, he will employ at least the following safeguards: (a) Make the reference express and clear. (b) Use only specific reference when adopting statutory precepts with exact citation, never mere description. There is a saying that the strength of a statute lies in its general phrases. But Ernst Freund showed that to be a half truth, that in some statutes general phrases constitute weakness. The foregoing analysis has demonstrated that in most statutes general references usually do so. (c) Be...